UPDATE, 6/19/2019, 10:40 am:
Yesterday (Tues 6/18), the Court held its pre-trial conference in the AA vs Mechanics’ Union lawsuit. A few notes and observations:
* Despite its setbacks in the Lawsuit so far, the Union continues to defend the case and press toward trial.
* The Union still contends that (a) AA’s operational difficulties are the result of other factors, not a concerted work slowdown by Mechanics; (b) the Union itself did not authorize or urge a slowdown; (c) AA should be disciplining individual mechanics if AA believes there is misconduct, not suing the Union (???); (d) the Mechanics should not be required to work under risk of being found in contempt of court for every work decision they make; and (e) a permanent injunction against slowdown activity would create an unacceptable public safety risk.
* The case is now definitely set for trial starting at 9:00 am on Monday, July 1. This will be a non-jury trial in which Judge McBryde will make all necessary decisions to resolve disputed facts, as well as making all legal conclusions.
* The TRO issued last Friday (June 14) will remain in effect until the end of the trial.
* It appears that the Union complied with the terms of the TRO requiring it to notify members not to engage in slowdown activity. AA has not made any complaints that the Union failed to behave as ordered, at least not formally and not within the short time since the TRO was entered late Friday afternoon (June 14).
Our quick take (keeping a neutral perspective but recognizing the realities of what has happened in the case): AA continues to have a strong position and make good strategic choices in the Lawsuit. The Union appears determined to persist in taking the case to trial. Another in-person settlement meeting is required by Monday, June 24, so we’ll see what happens there. In our view, the Union is treading on thin ice if it takes the case to trial – it may very well make things worse for itself if it incurs further wrath from Judge McBryde. But it may have backed itself into a corner with its strong rhetoric in negotiations and to its members. In the meantime, it would be very risky for the Union and the Mechanics to continue any slowdown activity between now and the July 1 trial date.
American Airlines (AA) and its Mechanics’ Union are engaged in an increasingly fierce and bitter battle over a new labor agreement. This situation has resulted in litigation between AA and the Union in Federal Court in Fort Worth, Texas. On Friday (June 14), the Court entered a much-publicized Temporary Restraining Order (TRO) preventing the Union from interfering with AA’s airline operations.
We’ve seen a lot of reporting on the litigation and the TRO, with some of it being inaccurate and the rest painting an incomplete picture. I hope to shed some brighter light on the “AA vs Mechanics’ Union” lawsuit, from the perspective of a recently-retired Texas trial lawyer who has spent many years litigating in Federal Court in the Northern and Eastern Districts of Texas, in hopes of helping readers better understand the lawsuit and issues.
What Led Up to the Lawsuit?
AA and the Union have been engaged in negotiations for a new labor agreement (a Collective Bargaining Agreement, or CBA), since December 2015. Having not reached an agreement in almost 3 years, the parties turned to mediation through the National Mediation Board. Mediation is a process of further settlement discussions, with a trained neutral third party acting as a go-between, or mediator, to help facilitate agreement. There were several settlement meetings as part of the mediation process. The most recent (and last-scheduled) meeting occurred in late April 2019 and ended without agreement.
According to the Union, the major sticking points to the CBA negotiation have been (a) the extent to which AA will have the ability to contract maintenance work out to vendors (and thereby reduce the number of maintenance jobs at AA); and (b) health care.
It’s also worth understanding a bit about CBAs and federal law. Under the federal law that applies to this situation (the Railway Labor Act), the current CBA does not expire; rather, it stays in effect unless and until AA and the Union agree to change it. This same federal law also prevents AA from locking out the Mechanics, the Union from striking, and both sides from engaging in other “self-help” at this time. Those options may become possible later, but only after the mediation process reaches a stalemate, the National Mediation Board releases the parties from mediation, and a required “cooling off” period passes.
The Lawsuit – What Is It Exactly, and What Should We Know About It?
AA filed the Lawsuit on May 20, 2019, in Federal Court in the Northern District of Texas, Fort Worth Division. This is the Federal Court for the District in which AA’s headquarters are located. The lawsuit is entitled “Complaint for Injunctive Relief.”
Who Are the Parties to the Lawsuit?
The plaintiff in the lawsuit is American Airlines Inc. Remember that AA is a combination of “old” AA and “old” US Airways. US Airways was merged into AA, and the merged company is now a single legal entity.
The defendants in the lawsuit are:
- Transport Workers Union of America, AFL-CIO (TWU)
- TWU is the union for the legacy AA mechanics
- International Association of Machinists and Aerospace Workers (IAM)
- IAM is the union for the legacy US Airways mechanics
- Airline Mechanic and Related Employee Association TWU/IAM
- This is an association formed by TWU and IAM that acts as the representative for the combined mechanics unions at post-merger AA
There are no individual persons named as defendants in the Lawsuit, only these 3 union entities, which we collectively call the Union in this article.
What Does AA Allege?
In short, AA alleged that, starting in early February 2019 and intensifying through the date the Lawsuit was filed on May 20, the Union and its officers and members engaged in a concerted “slowdown” effort designed to disrupt AA’s operations and create leverage for the Union in the ongoing CBA negotiations. AA alleged that:
- Mechanics are en masse taking an inordinately long time to repair aircraft, resulting in a dramatic increase in outstanding maintenance write-ups and contributing to a spike in aircraft out of service.
- Mechanics are en masse refusing to work overtime and take maintenance field trips to repair aircraft.
AA claims that the Union instructed the mechanics to engage in a slowdown, and it also claims that some Union members reported threats of intimidation and harassment of those who refused to participate in slowdown activity. AA included in its allegations colorful statements from the Union that “this may be shaping up to be a very long, hot summer and not just because of the weather.”
More specifically, AA alleged that the Union’s slowdown tactics included:
- Mechanics are taking longer to repair and clear write-ups
- Initiating a higher number of “Minimum Equipment List” maintenance items (MELs) and then failing to clear them, which result in planes having to be pulled out of service when MELs are not cleared within the required timeframe
- The number of open MELs increased steadily from February 4 through May 13
- On 69 out of 99 days during the Feb 4-May 13 period, open MELs were at a level so high that they would have been in the top 1% based on AA’s historical MEL levels
- Initiating a higher number of “Minimum Equipment List” maintenance items (MELs) and then failing to clear them, which result in planes having to be pulled out of service when MELs are not cleared within the required timeframe
- The slowdown has caused a spike in aircraft out of service
- AA expects to have 35 unscheduled aircraft out of service at 7:00 am each day
- During the alleged slowdown, AA has averaged 44 unscheduled aircraft out of service at 7:00 am each day
- Mechanics are refusing to work overtime and take field trips
- AA says that overtime and field trips are normally valued by mechanics because they provide opportunities for extra and premium pay
- AA says that the number of overtime shifts at its Phoenix hub dropped almost to zero in early March
- AA says that field trips with “no takers” also began occurring significantly more frequently, with its Charlotte, Phoenix and Philadelphia hubs regularly reaching a 100% refusal rate
AA’s statistics expert said that the likelihood of the increased numbers of MELs and aircraft out of service had a likelihood of less than one in one billion of being attributable to random chance.
AA alleges that the slowdown created a significant increase in cancellations and delays. From February 4 through May 13, AA experienced 450 more maintenance-related cancellations than during the same period in 2018, and 646 more maintenance cancellations than during the same period in 2017. In addition, the average number of maintenance-related delay minutes per flight increased by nearly 29% compared to 2018.
Quantitatively, AA alleged that:
- There were 650 extra maintenance-related cancellations from March 8 through May 13, impacting 88,000 passengers
- The slowdown caused 1,550 additional flight delays, including 279 delays of 2 hours or longer that impacted 37,500 passengers
Note that AA’s allegations are based on statistical analyses of the airline’s operations as a whole. AA does not go into any flight-by-flight details or analysis about whether or why any particular flight was impacted.
What Relief Does AA Seek?
AA’s Lawsuit does not seek any monetary damages. Rather, it seeks a permanent injunction to prohibit the Union (and all of its locals, officers, members, etc.) from interfering with AA’s airline operations in any way. Specifically, AA seeks to prevent “any strike, work stoppage, sick-out, slowdown, work to rule campaign, or any other concerted refusal to perform normal operations.”
AA continues by listing further examples of activities that should be prevented, including “refusing to accept overtime, refusing to accept field trips, failing to complete maintenance repairs timely, slowing down in the performance of their job duties, and any other action intended to cause aircraft to be out of service (and specifically to cause aircraft out of service at 7 a.m.) or otherwise to cause flight delays or cancellations or interfere with American’s operations, or threatening or intimidating any employee for accepting overtime or field trips or otherwise performing his or her job duties as he or she would in the normal course.”
AA also asked the Court to order that the Union instruct all its members to resume their normal working schedules and practices and not to engage in any concerted refusal to perform normal operations.
Who Is the Judge in This Case?
This case was assigned to Senior United States District Judge John H. McBryde. This is very important fact to this case.
Judge McBryde has been a Federal Judge for almost 30 years. He’s now 87 years old. Whatever else one might say about him (and plenty have; here’s a recent summary article from the Dallas Morning News), he is very active in managing his cases, he moves things quickly, and he’s no-nonsense.
Who Are the Attorneys in This Case?
AA’s lead counsel is from the high-powered national law firm of O’Melveny & Myers. Its local counsel in Fort Worth is Dee Kelly, Jr., from the major Fort Worth firm of Kelly Hart & Hallman, which has represented AA for years.
Having an army of O’Melveny lawyers at its disposal means that AA can deal with the multitude of issues and tasks in this case on the very fast timeline in which it’ll be resolved. Having Dee Kelly as its local counsel ensures that AA has a lawyer who is extremely well-connected, very knowledgeable about local Fort Worth practice, and experienced in dealing with the demanding requirements of Judge McBryde.
The Union is represented by small law firms in Miami and Washington DC that specialize in representing unions in labor disputes, with local counsel in Dallas who has the same specialty.
I’ll presume that the Union’s attorneys are quite capable and knowledgeable in their area of practice. However, they don’t have nearly the same resources as AA has with O’Melveny, which is likely to be a significant disadvantage. Likewise, they don’t match up with AA’s counsel in terms of court-specific knowledge and experience in Judge McBryde’s court.
This looks like a huge advantage for AA.
What’s the Schedule for This Case?
This case has moved very quickly, and it will continue to do so.
On the very next day after the case was filed, Judge McBryde held a telephone conference with the attorneys for both sides. I can’t even begin to tell you how unusual it is to get that kind of quick action from a federal court. The Court required AA to file its witness list only 2 days later, and the Union to file its responsive witness list on the 2nd business day after that – again, unheard-of speed.
The Union was required to file its written responses to AA’s allegations on June 10 and 11.
The Court required the parties and their attorneys to have an in-person settlement meeting by June 11, and another by June 24.
The case is set for a 1-day non-jury trial before Judge McBryde during the week of July 1, 2019.
The timing of the trial is almost certainly no accident. This type of injunction proceeding where the airline is alleging that it and its passengers are being harmed will almost always move quickly. But I suspect that Judge McBryde placed it during the week of the 4th of July, when many of the attorneys and witnesses in the case would have vacation plans, on purpose, to try to drive the parties to get the matter resolved before then.
How About a Funny Story About the June 11 Settlement Meeting?
As we mentioned earlier, the Court required the parties to hold a settlement meeting by June 11. Each of the parties and their attorneys were specifically required to attend in person. The meeting was set to take place in Fort Worth. And I promise you, knowing that Judge McBryde is a no-nonsense stickler, no one was trying to dodge the requirement that they attend in person.
AA’s lead lawyer from the O’Melveny firm lives and works in Los Angeles, and its second-chair lawyer is from the O’Melveny New York office. Neither one of them made it … because of flight cancellations!
AA’s lead LA lawyer “had made plans to attend the meeting in person as instructed by the Court but his flight to DFW was cancelled at the last minute by the airline. He then attempted to secure another flight but was unable to find any options to DFW that day. [He] did not travel to Fort Worth the following morning because the time change from California to Texas did not allow him to arrive before the scheduled morning meeting[.]”
And AA’s second-chair lawyer form New York “had two flights from New York to DFW cancelled less than one hour before departure time, and was unable to secure alternative arrangements that allowed him to arrive in time[.]”
What Happened After the Lawsuit Was Filed?
Apparently, after the lawsuit was filed, the Union doubled down on its “slowdown” efforts.
This probably seemed like a good idea to the Union at the time – show exactly how tough it would be in reaction to AA’s Lawsuit – but it has proven to be a catastrophic decision in terms of how the Lawsuit has played out.
As a side note, this is when we ourselves Tweeted that we believed we were caught in the crossfire of the AA-Mechanics fight. On a June 3 DFW-SEA flight, we were delayed multiple times, by what was initially announced as “a few minor mechanical issues.” We ended up traveling on a different plane, about 4½ hours late. And, on our return flight on June 6, our flight was cancelled. We were re-booked onto a flight that left SEA 3+ hours later.
The intensified “slowdown” resulted in AA filing a Motion for Temporary Restraining Order on June 14 at 12:20 pm. In this motion, AA alleged that the “slowdown” conduct had “dramatically escalated” and “become devastating to the airline’s operations, customers and employees,” creating an “operational crisis causing significant damage to American, the travelling public and American’s employees.”
AA alleged the following facts about the “slowdown” in the period since the Lawsuit was filed:
- AA experienced 722 flight cancellations due to the maintenance slowdown, in 23 days (average ~31 cancellations per day)
- Between May 20 and June 6, an average of more than 6,300 AA passengers per day had their travel plans disrupted
- Since June 7 (through probably June 12 or 13), AA averaged almost 80 maintenance-related flight cancellations or prolonged delays per day, impacting 11,000 passengers per day
- From May 20 through June 12 or 13, more than 175,000 AA passengers were impacted by delays and cancellations caused by the slowdown
- During the 10-day period from June 4 to June 13, AA averaged 61 aircraft out of service each day – compared to 2017 and 2018, when not a single day had more than 60 aircraft out of service
- MELs also continued to rise after the Lawsuit was filed, from an average of 457 per day in the days leading up to the Lawsuit filing, to an average of 522 per day afterwards
In response to AA’s Motion for Temporary Restraining Order, the Court acted immediately. The Court held a telephonic hearing that began at 4:05 pm – less than 4 hours after AA filed its Motion on a Friday afternoon. The Court did not request a written response from the Union, and it didn’t wait for one either.
The hearing was quick – only 22 minutes long. It ended at 4:27 pm. Apparently the Court was quite persuaded that AA’s request for relief was justified. A mere 33 minutes later, at 5:00 pm, the Court issued a Temporary Restraining Order (TRO) against the Union.
In issuing the TRO, the Court expressly found that AA is “likely to succeed on the merits of its claims that the Union is violating” federal law by virtue of its “slowdown” activity. The Court also found that if the TRO did not issue, AA would incur additional and immediate damage before the July 1 trial date, including damage to its business reputation and goodwill. Further, the Court found that “large members of the traveling public are likely to be deprived of transportation services, causing serious and substantial damage to the public interest.”
The terms of the TRO were almost exactly the ones that AA requested in the Lawsuit:
- The Court enjoined the Union and its locals, officers, members, etc., from any form of interference with AA’s airline operations, including any slowdown, work to rule campaign, or any other concerted refusal to perform normal operations.
- This includes, “refusing to accept overtime as employees would in the normal course, refusing to accept field trips as they would in the normal course, failing to complete maintenance repairs as they would in the normal course, slowing down in the performance of their job duties, and any other action intended to cause aircraft to be out of service (and specifically to cause aircraft out of service at 7 a.m.) or otherwise to cause flight delays or cancellations or interfere with American’s operations, or threatening or intimidating any employee for accepting overtime or field trips or otherwise performing his or her job duties as he or she would in the normal course.”
- The Court also ordered the Union to “take all reasonable steps within its power to prevent the actions listed above,” including:
- Instructing all Union members to resume their normal working schedules and practices (and to provide AA with copies of all such instructions)
- Notifying all members expeditiously of the issuance, contents and meaning of the TRO (and to provide AA with copies of all such notices)
- Including in the notice a directive from the Union not to do any of the activities prevented by the TRO, upon pain of fine, suspension or other sanction by the Union
- Posting the notice on the Union’s websites and social media accounts
- Distributing the notice through all non-public communication systems maintained by the Union, including text message distribution lists
A full copy of the TRO follows:
A Few Final Observations and Perspectives
First, AA has dominated the Union so far in this litigation. It seems like there was a pretty good chance AA was going to prevail anyway, but the Union’s decision to double down on the “slowdown” activity after the Lawsuit was filed was catastrophic. Judge McBryde was swift and decisive in granting the TRO. We suspect that he is not at all happy with the Union at this point.
From a legal strategic perspective, the Union spent a lot of its written response trying to persuade the Court that AA was being the bad guy in the ongoing labor agreement negotiations. That really had nothing to do with the substance of what’s at issue in this particular case. It also tried some overly-technical arguments that have not persuaded the Court.
By contrast, every strategic move that AA has made in this case seems to have been on-point.
Remember, the Court is not opining at all on the merits of the labor agreement discussions. That’s for the parties to work out amongst themselves, through continuing discussions. For now, those discussions seem to be dormant and still stalemated. But pressure on both sides will increase if and when they move further through the process toward a time when a strike or other disruption could be a legally permissible option.
We’ve seen at least one blogger opine that the TRO likely wouldn’t have any impact on the slowdown. We wholeheartedly disagree. There is no doubt that Judge McBryde meant what he said in the TRO he issued. We strongly suspect that a significant part of the 22-minute telephonic conference last Friday consisted of Judge McBryde making sure that the lawyers understood every word of the TRO and that the Union would strictly abide by its terms. And the attorneys know that non-compliance will incur the absolute wrath of the Court. Based on his judicial history, we are confident that Judge McBryde will not hesitate to sanction the Union with substantial fines and even call Union officials to appear before him, possibly with jail time on the line, if he believes that the Union has disobeyed his Temporary Restraining Order. In sum, this Order has teeth. We would be shocked if “slowdown” activity continues.
Given the decisive result of the TRO proceedings, we wonder whether the Union will even bother going through with the trial. It will incur a lot of expense in doing so, it’s unlikely to make the result any better, and it runs some risk of further angering the Court and making things worse. At this point, the Union’s best course may be to simply agree to a permanent injunction that it won’t engage in “slowdown” activity.
By behaving as it has, it seems like the Union has lost some leverage in its ongoing labor agreement negotiations. Through the proceedings in the Lawsuit so far, AA has removed the “slowdown” weapon from the Union’s arsenal. And that seems unlikely to change. For now, the Union has overplayed its hand and gotten slapped. We wonder whether this will shake the Union membership’s confidence in the decisions of its leadership.
As for us, we just want to fly safely and arrive at our destination on time unless there’s a good reason that can’t happen. We hope that AA and the Union can reach a mutually beneficial long-term agreement soon.
We hope you’ve enjoyed our detailed review of the Lawsuit between AA and its Mechanics’ Union as well as our observations about the case from the perspective of a Texas trial lawyer. We’ve tried to set things out as neutrally and objectively as possible, at least in light of the fact that AA’s efforts in the Lawsuit have been highly effective to date.
Do you have other questions we can answer about the proceedings in the AA vs Mechanics’ Union lawsuit? If so, please ask away in the Comments!
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